Deok Joo Rhee (instructed by Anthony Collins Solicitors LLP) for the Claimant
Michael Bowsher QC, and Ewan West (instructed by Colette Longbottom, Head of Legal and Democratic Services, Durham County Council) for the Defendant
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4 The Defendant confirms that neither Marion Usher nor Louise Lyons, from whom witness statements were served, will be included on the future interviewing panel in respect of this tendering process. The Defendant confirms that the Head of Adult Commissioning and the Director of Adult and Community Services will not be involved in the conduct of the interviews themselves although they may need to remain involved in the oversight of the remainder of the procurement process.

(3) Whether in the absence of any variation to the terms of the March 2009 Order the Council is precluded from exercising any powers they would otherwise have to terminate the current tender process and start afresh.

“First, at least in general, if the order was a genuine consent order, that is representing a contractual agreement between the parties, and stated that, if a party did not do something within a specified time, then his claim or defence would be struck out or that there would be some other sanction, that represented a contract with which the court had no power to interfere, save in circumstances in which the court has power to interfere with a contract. That seems to me to be the effect of the judgments in Purcell v FC Trigell Limited [1971] 1 QB 359 – see at 365G per Winn LJ and 366D per Buckley LJ .“

“To my mind, the CPR therefore gives the Court rather more wide- ranging, more flexible powers than the RSC. In my judgment, those powers are to be exercised not merely to do justice between the parties, but in the wider public interest. Further, the objective to deal with a case justly must, as I see it, sometimes (albeit rarely) require the court to override an agreement made between the parties in the course of, and in connection with, the litigation. I consider that this means that the court has greater power to interfere than before. Having said that, I should add this. Where the parties have agreed in clear terms on a certain course, then, while that does not take away its power to extend time, the court should, when considering an application to extend time, place very great weight on what the parties have agreed and should be slow, save in unusual circumstances, to depart from what the parties have agreed.“

“There are two meaning to the words “by consent”. One meaning is this: the words “by consent” may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words “by consent” may mean “the parties hereto not objecting”. In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties.“

In Weston v Dayman[2006] EWCA Civ 1165 the Court of Appeal had to deal with the meaning of a consent order and an application to vary the terms of that order. In that case the order was not a Tomlin Order but the terms of the agreement were incorporated within a consent order. It was argued that the variation could be based on CPR 3.1(7) which provides that the Court has power to vary or revoke an order. It was also argued that the variation could be made under an express provision which gave “liberty to apply”.

“I will proceed on the basis (without deciding the point) that CPR 3.1(7) applies to paragraph 10 of the order of 23 January 2003. I would accept that the Court should accede to an application for variation where it is just to do so but in my judgment one of the aspects of justice is that a bargain freely made should be upheld. Mr Weston clearly obtained benefits under the order of 23 January 2003. It may well be that those benefits are not as great as he thought, but that is not a matter for the court. In those circumstances I do not consider it would be right for this court to exercise its discretion to vary the order as sought.“

“Essentially, a Tomlin Order records terms of settlement agreed between the parties but those terms are not ordered by the court and are not enforceable as a judgment, at least not without a further order.

The terms contained in the schedule are not something for approval by a judge. The judge will, however, approve the order itself.

...

If it is intended to embody terms of settlement which can be enforced as an order the terms need to be in the order itself (not the schedule) and set out clearly. Such an order should not include provision for a stay of the proceedings as there would be no point in such a stay.“

“‘Liberty to apply’ is expressed, and if not expressed will be implied, where the order drawn up is one which requires working out, and the working out involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied.“

“If there were an unforeseen change of circumstances, for instance, if the wife were left by will another house, or if she took an adulterer to live with her in this house, I should have thought that the ‘Liberty to apply’ would enable the court to remedy the position.“

“The authorities cited before me demonstrate that the grounds for setting aside a consent order fall into two categories. (1) cases in which it is alleged there was at the date of the order an erroneous basis of fact eg misrepresentations or misunderstanding as to the position or assets. (2) cases in which there has been a material or unforeseen change in circumstances after the order so as to undermine or invalidate the basis of the consent order, as in Barder v Barder [1988] AC 20, and known as a supervening event.

In many of the decided authorities, contractual terms such as “fraud” and “misrepresentation” are used, but it is important to remember that court orders for financial provisions in matrimonial proceedings derive their authority not from the agreement of the parties but from the approval of the court and the resulting consent order: see Jenkins v Livesey[1985] AC 424 and Xydhias v Xydhias[1999] 2 All ER 386.“

“The Council reserves the right to cancel the tender process at any point. The Council is not liable for any costs resulting from any cancellation of this tender process nor for any other costs incurred by those tendering for this Contract.“